The Legal Split in Child Protection

The Legal Split in Child Protection (Essays on Law, Policy and Psychiatry, Vol. 9, 2018) is a study that attempts to redefine child protection, and goes as far as formulating a new paradigm of child protection that is healed of the legal split that pervades it until now. The study explains that the laws for protecting the child against abuse are following a fundamental split in social mores and statutory regulation of physical violence against children, on one hand, and sexual relationships with children, on the other. The perversity of this situation becomes evident when one realizes that the present sex laws in the United States punish non-violent, non-penetratory and non-harmful sexual conduct with children with roughly twenty years of prison, while a violent sexual assault on a child that may be followed by the mutilation of the child or even their death, receives more or less the same criminal fine. This legal situation is to be explained first of all with the fact that sex laws are basically irrational codifications that are the successors of Canon law, and second with a basic double standard that reigns in social morality in most Anglo-Saxon countries regarding physical violence against children in the form of corporal punishment, on one hand, and sexual activities with children, be they non-violent and consenting, or violent and assaulting, on the other. While educational violence is largely socially accepted and justified with pseudo-rational arguments, even slight forms of sexual conduct with children, as for example having a child caress one's genital while being fully dressed, are met with Draconian punishments that miss any rational basis, and that are legally unproportional. For this and other reasons, most of these sex laws are unconstitutional. The study consists of two parts, an analytic part, which is an overview over existing case law, and a draft bill. In the first part, precedents and statutes are discussed that rule on the borderline between lawful corporal punishment of children and unlawful child battery. Details of those precedents are then compared with sex laws or age of consent laws in order to show the often unbelievable irrationality of those judgments. The study demonstrates that, under present law, the dividing line between corporal punishment and child battery boils down to legally licensing rampant violence acted out on children by tutelary adults 'in the name of the child's best.' On the other hand, even a care-giving caress of a child's genitals would be considered in most states as statutory child rape. The study reveals that the rationale behind such laws is not the ever again pretended best of the child but the present socio-economic value system and its moralistic roof structure.